Definition of
CHALLENGE

practice. An exception made to jurors who are to passon a trial; to a judge; or to a sheriff.

2. It will be proper here to consider, 1. the several kinds of challenges;2. by whom they are to be made; 3. the time and manner of making them.

3. - 1. The several kinds of challenges may be divided into those whichare peremptory, and those which are for cause. 1. Peremptory challengesare those "which are made without assigning any reason, and which the courtmust allow. The number of these which the prisoner was allowed at commonlaw, in all cases of felony, was thirty-five, or one under three full juries.This is regulated by the local statutes of the different states, and thenumber except in capital cases, has been probably reduced.

4. - 2. Challenges for cause are to the array or to the polls. 1. A challengeto the array is made on account of some defect in making the return to thevenire, and is at once an objection to all the jurors in the panel. It iseither a principal challenge, that is, one founded on some manifest partiality,or error committed in selecting, depositing, drawing or summoning the jurors,by not pursuing the directions of the acts of the legislature; or a challengefor favor.

5. - 2. A challenge to the polls is objection made separately to each juroras he is about to be sworn. Challenges to the polls, like those to the array,are either principal or to the favor.

6. First, principal challenges may be made on various grounds: 1st. propterdefectum, on account of some personal objection, as alienage, infancy, oldage, or the want of those qualifications required by legislative enactment.2d. Propter affectum, because of some presumed or actual partiality in thejuryman who is made the subject of the objection; on this ground a jurormay be objected to, if he is related to either within the ninth degree,or is so connected by affinity; this is supposed to bias the juror"s mind,and is only a presumption of partiality. Coxe, 446; 6 Greenl. 307; 3 Day,491. A juror who has conscientious scruples in finding a verdict in a capitalcase, may be challenged. 1 Bald. 78. Much stronger is the reason for thischallenge, where the juryman has expressed his wishes as to the result ofthe trial, or his opinion of the guilt or innocence of the defendant. 4Harg. St. Tr. 748; Hawk. b. 2, c. 43, s. 28; Bac. Ab. Juries, E 5. And thesmallest degree of interest in the matter to be tried is a decisive objectionagainst a juror. 1 Bay, 229; 8 S. & R. 444; 2 Tyler, 401. But see 5 Mass.90. 3d. The third ground of principal challenge to the polls, is propterdelictum, or the legal incompetency of the juror on the ground of infamy.The court, when satisfied from their own examination, decide as to the principalchallenges to the polls, without any further investigation and there isno occasion for the appointment of triers. Co. Litt. 157, b; Bac. Ab. Juries,E 12; 8 Watts. R. 304.

7. - Secondly. Challenges to the poll for favor may be made, when, althoughthe juror is not so evidently partial that his supposed bias will be sufficientto authorize. a principal challenge, yet there are reasonable grounds tosuspect that he will act under some undue influence or prejudice. The causesfor such cballenge are manifestly very numerous, and depend, on a varietyof circumstances. The fact to be ascertained is, whether the juryman isaltogether indifferent as he stands unsworn, because, even unconsciouslyto himself, be may be swayed to one side. The line whicb separates the causesfor principal challenges, and for challenge to the favor, is not very distinctlymarked. That the juror has acted as godfather to the child of the prosecutoror defendant, is cause for a principal cballenge; Co. Litt. 157, a; whilethe fact that the party and the juryman are fellow servants, and that thelatter has been entertained at the house of the former, is only cause forchallenge to the favor. Co. Litt. 147; Bac. Ab. Juries, E 5. Challengesto the favor are not decided upon by the court, but are settled by triers.(q. v.)

8. - 2. The challenges may be made by the government, or those who representit, or by the defendant, in criminal cases; or they may be made by eitherparty in civil cases.

9. - 3. As to the time of making the challenge, it is to be observed thatit is a general rule, that no challenge can be made either to the arrayor to the polls, until a full jury have made their appearance, because ifthat should be the case, the issue will remain pro defectu juratorum; andon this account, the party who intends to challenge the array, may, undersuch a contingency, pray a tales to complete the number, and then objectto the panel. The proper time, of challenging, is between the appearanceand the swearing of the jurors. The order of making challenges is to thearray first, and should not that be supported, then to the polls; challengingany one juror, waives the right of challenging the array. Co. Litt. 158,a; Bac. Ab. Juries, E 11. The proper manner of making the challenge, isto state all the objections against the jurors at one time; and the partywill not be allowed to make a second objection to the same juror, when thefirst has been over-ruled. But when a juror has been challenged on one side,and found indifferent, he may still be challenged on the other. When thejuror has been cliallenged for cause, and been pronounced impartial, hemay still be challenged peremptorily. 6 T. R. 531; 4 Bl. Com. 356; Hawk.b. 2, c. 46, s. 10.

10. As to the mode of making the challenge, the rule is, that a challengeto the array must be in writing; but when it is only to a single individual,the words " I challenge him " are sufficient in a civil case,or on the part of the defendant, in a criminal case when the challenge ismade for the prosecution, the attorney-general says, We challenge him."4 Harg. St. Tr. 740 Tr. per Pais, 172; and see Cro. C. 105; 2 Lil. Entr.472; 10 Wentw. 474; 1 Chit. Cr. Law, 533 to 551.

11. Interest forms the only ground at common law for challenging a judge.It is no ground of challenge that he has given an opinion in the case before.4 Bin. 349; 2 Bin. 454. By statute, there are in some states several othergrounds of challenge. See Courts of the U. S., 633 64.

12. The sheriff may be challenged for favor as well as affinity. Co. Litt.158, a; 10 Serg. &. R. 336-7. And the challenge need not be made tothe court, but only to the prothonotary. Yet the Sheriff cannot be passedby in the direction of process without cause, as he is the proper officerto execute writs, except in case of partiality. Yet if process be directedto the coroner without cause, it is not void. He cannot dispute the authorityof the court, but must execute it at his peril, and the misdirection isaided by thc statutes of amendment. 11 Serg. & R. 303.